Com. v. Wongus, T.

J-S61040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRANCE WONGUS :
:
Appellant : No. 2183 EDA 2018
Appeal from the PCRA Order Entered June 22, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000177-2012,
CP-51-CR-0011899-2011, CP-51-CR-0014628-2011
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 13, 2020
Terrance Wongus appeals from the order that dismissed his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We quash this appeal.
Given our disposition, a full recitation of the facts of this case is
unnecessary. Suffice it to say that Appellant was convicted of various crimes
at three docket numbers, this Court affirmed his judgment of sentence of an
aggregate term of twenty to forty years of incarceration, Appellant filed a
timely pro se PCRA petition at each of the three docket numbers, and an
amended petition filed by appointed counsel was dismissed without a hearing
by a single order listing all three docket numbers. Thereafter, Appellant
electronically filed in each case the same notice of appeal listing all three
docket numbers.
* Former Justice specially assigned to the Superior Court.
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This Court issued a rule to show cause why the appeal should not be
quashed pursuant Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018)
(holding that an appeal must be quashed if an appellant fails to file separate
notices of appeal at each docket number implicated by an order resolving
issues that involve more than one trial court docket). See also
Commonwealth v. Creese, 216 A.3d 1142, 1144 (Pa.Super. 2019)
(concluding that Walker mandates that “a notice of appeal may contain only
one docket number”). Upon receiving a response from Appellant, in which
counsel claimed ignorance of the Walker decision and requested leave for
remand to comply with its dictates, this Court discharged the rule and referred
the issue to this merits panel.1
Our review of the record leads us to conclude that this appeal should be
quashed, not because of a violation of Walker, but due to the absence of a
final, appealable order. With one exception not applicable here, “no order of
a court shall be appealable until it has been entered upon the appropriate
docket in the lower court.” Pa.R.A.P. 301(a)(1). An order is properly entered
upon the docket by indication thereon of “(a) the date of receipt in the clerk’s
office of the order or court notice; (b) the date appearing on the order or court
notice; and (c) the date of service of the order or court notice.” Pa.R.Crim.P.
114(C)(2). The thirty-day time period for appealing from a criminal order
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1 The Commonwealth expressly declined to take a position on the Walker
issue. See Commonwealth’s brief at 4 n.1.
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other than a judgment of sentence begins to run on the day that the order is
served on the parties by the clerk of courts. See Pa.R.A.P. 108(a)(1), (d).
The PCRA court’s June 22, 2018 order in the instant case has not been
properly entered on the docket. The entry for the order contains no indication
that the order was served as required by Pa.R.Crim.P. 907(4),2 let alone
notation of the date upon which such service was made in accordance with
the mandates of Pa.R.Crim.P. 114(C)(2).
Accordingly, we quash this appeal as premature.3 After the clerk of
courts serves the order dismissing Appellant’s petition in accordance with
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2 The Rule provides:
When the petition is dismissed without a hearing, the judge
promptly shall issue an order to that effect and shall advise the
defendant by certified mail, return receipt requested, of the right
to appeal from the final order disposing of the petition and of the
time limits within which the appeal must be filed. The order shall
be filed and served as provided in Rule 114.
Pa.R.Crim.P. 907(4). We note that the order at issue in this appeal further
fails to comply with Pa.R.Crim.P. 907(4), in that it includes no information
about the right to appeal or time limits for doing so.
3 The Dissent correctly notes that there is precedent that allows this Court to
overlook this jurisdictional defect by treating as done what ought to have been
done. See Dissenting Memorandum at 3 (citing Commonwealth v. Carter,
122 A.3d 388, 391 (Pa.Super. 2015)). However, the Dissent cites no authority
to suggest that we must overlook the lower court’s failure to follow the
mandates of the Rules of Criminal Procedure and proceed with the appeal.
This Court has, in other precedential decisions, quashed premature appeals
rather than overlook the defects in our jurisdiction. See, e.g., Margolis v.
Klinger, 769 A.2d 545, 548 (Pa.Super. 2001) (quashing appeal from order
granting motion for judgment of non pros because the prothonotary had not
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Pa.R.Crim.P. 907(4) and notes such service on the docket as required by Rules
114(C),4 Appellant will have thirty days from the date of service to timely file
separate notices of appeal at each docket implicated by the order.
Appeal quashed.
Judge Olson joins the memorandum.
President Judge Emeritus Stevens files a dissenting memorandum.
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entered judgment on the docket). Accord Gavula v. ARA Servs., Inc., 756
A.2d 17, 19 (Pa.Super. 2000) (holding that matter was not appealable upon
entry of order declaring matter settled where docket did not reflect service of
the order; rather it was only when a subsequent order properly docketed “that
the matter became appealable”). Thus, there is not, as the dissent suggests,
a uniformity of precedent dictating that we overlook jurisdictional defects in
the name of judicial economy. Compare Randt v. Abex Corp., 671 A.2d
228, 230 (Pa.Super. 1996) (declining to quash appeal or remand for entry of
appealable order, instead regarding as done that which ought to have been
done), with Ryan v. GAF Corp., 664 A.2d 171, 172 (Pa.Super. 1995)
(quashing appeal when, after remanding for proper entry of an appealable
order, the appellant failed to secure entry of judgment).
Further, these principles are typically invoked to excuse an appellant’s failure
to take steps necessary to allow this Court to address the substance of his
claims. See, e.g., Commonwealth v. Hooks, 921 A.2d 1199, 1202
(Pa.Super. 2007) (holding late filing of Pa.R.A.P. 1925 statement did not result
in waiver where docket did not indicate date and manner of service); In re
K.P., 872 A.2d 1227, 1230 (Pa.Super. 2005) (excusing untimeliness of appeal
where docket did not note service of the order). See also Commonwealth
v. Braykovich, 664 A.2d 133, 136-38 (Pa.Super. 1995) (holding failure of
clerk of courts to advise defendant that his post-sentence motion had been
denied by operation of law excused late-filed appeal). Here, ignoring the court
breakdown would serve to harm Appellant rather than help him. See
Dissenting Memorandum at 4-7. Accordingly, we decline to overlook the clerk
of courts’ Rule 114 violation in this case.
4 The public docket entry for the PCRA court’s November 5, 2018 order
directing Appellant to file a statement pursuant to Pa.R.A.P. 1925(b) provides
an excellent example of compliance with Rule 114(C)(2).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/20
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